Implications to the Public of Denying Access to GBI Records

GEORGIA SUPREME COURT DENIES FORMER SUSPECT ACCESS TO GBI RECORDS

A recent decision by the Georgia Supreme Court denying access to records has an impact outside of the criminal justice system and extends to individuals, businesses and the public as a whole.

In Evans v. Georgia Bureau of Investigation, decided June 15, 2015, a unanimous Supreme Court denied access to records sought in a lawsuit filed by Christopher Evans. Evans was a Director of Operations for the Georgia Electronic Design Center at Georgia Tech. In 2010, he was arrested and charged with RICO violations. Two other persons were also arrested.

Ultimately the arrest warrants against Evans were dismissed and no indictment was returned against him. At that time, pursuant to an open records request, he requested copies of the GBI records that had been assembled insofar as they related to him. The GBI objected to the open records request on the ground that the investigation was still pending against the other two individuals.

Under Georgia law, there is no dispute that the GBI records concerning the arrest warrants taken out against Evans in September of 2010 are “public records.” However, the Supreme Court agreed with the GBI that there was still a pending investigation and therefore the requested records were exempt from disclosure under O.C.G.A § 50-18-72(a)(4) – the “pending investigation and prosecution” exemption, which reads as follows:

Records of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity, other than initial police arrest reports and initial incident reports; provided, however, that an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving such investigation and prosecution has become final or otherwise terminated; and provided, further, that this paragraph shall not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution; and provided, further, that the release of booking photographs shall only be permissible in accordance with Code Section 35.

And while information regarding the other individuals might be redacted from the records, the Supreme Court has previously held that where (a)(4) applies, it exempts from disclosure the “entirety” of such records. The Court noted, but did not decide, that the pending investigation might be concluded after the expiration of the five-year statute of limitations for prosecution of any racketeering charges against those who were arrested.

The effect of denying the open records request is as follows:

1. It prohibits the public from having access to law enforcement records.

2. It restricts the ability of an individual wrongfully accused of a crime from timely accessing the necessary documentation to receive an expungement of the underlying arrest.

3. It impacts business from a human resources standpoint, as companies require details of an investigation to determine an employee’s continued status with the company. Being unable to access records pertaining to the investigation may paralyze human resource department’s ability to conduct its own inquiry. Even though Georgia is an at-will employment state, most employers have reasonable standards for dismissal. This could have a negative impact on the employer’s operations and can lead to potential litigation.